The Supreme Court’s decision on this matter will be of great significance to entities that place high volumes of automated calls. If the Court agrees with Facebook, plaintiffs’ ability to bring TCPA cases will be greatly curtailed. If the Court agrees with the TCPA plaintiff, the plaintiffs’ bar is likely to continue suing businesses that make automated calls. Entities that place automated calls—or organizations acting on their behalf—may wish to consider submitting amicus briefs on Facebook’s behalf.
Until the Supreme Court rules in Facebook, Inc. v. Duguid, companies should continue to implement strategies designed to mitigate the risk of TCPA litigation. Companies should develop and implement robust practices designed to ensure that automated calls are made only to consumers who provide the required consent (which must be written in certain circumstances, including telemarketing calls). This evidence may include, among other things, (i) records of consent to receive calls or texts placed via ATDS or pre-recorded voice, (ii) recordings of calls with consumers, and (iii) dialer logs.
Although every situation is different, a TCPA defendant may be able to secure early dismissal if it can prove that the plaintiff provided the required consent. And if circumstances in which the plaintiff is not the consumer (e.g., if a wrong number is inadvertently entered into a consumer’s records), a company that has robust consent practices should have a strong argument that a class action cannot be certified because individualized inquiries are needed to determine whether each call recipient was called with or without consent.
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